State v. Baker

Decision Date23 August 1982
Docket NumberNo. 63244,63244
Citation636 S.W.2d 902
PartiesSTATE of Missouri, Respondent, v. Robert BAKER, Appellant.
CourtMissouri Supreme Court

James C. Jones, St. Louis, for appellant.

John Ashcroft, Atty. Gen., Kelly Klopfenstein, Asst. Atty. Gen., Jefferson City, for respondent.

DONNELLY, Chief Justice.

Appellant Robert Baker was convicted of capital murder by a jury in the Circuit Court of the City of St. Louis and was sentenced to death. Following rendition of judgment and imposition of sentence, an appeal was perfected to this Court. This Court has exclusive appellate jurisdiction under Mo.Const. art. V, § 3.

Gregory Erson was a police officer in the City of St. Louis. On June 19, 1980, he was assigned to work at the "Stroll", a high crime area, as an undercover agent on the prostitution detail. He drove an unmarked automobile, and wore blue jeans and a soft-ball shirt.

Appellant was also in the area of the "Stroll" on the evening of June 19, 1980. He and companions, including Leslie Lomax, were driving around the area in a pickup truck. They were seeking robbery victims so they could obtain money to purchase illegal drugs. At approximately 11:30 p. m. appellant and the others noticed Erson's car parked on Westminster near the corner of Westminster and Whittier. As they passed the car, they saw Erson in it and decided to make him their victim. They made a right turn off Westminster onto Whittier, and parked the truck out of Erson's view. Lomax then left the truck and went over to talk with Erson. Upon returning to the truck, he told the others that Erson had money because he said he wanted a "date." Lomax and appellant approached the automobile-Lomax on the driver's side and appellant on the passenger side. The windows of the front doors were open. According to appellant's confession, he shot Erson.

The police arrived at the scene soon after the shooting. Erson was found slumped over in the front seat of the car. His police radio was partially visible, although he was lying on it. His police department revolver was missing. Erson's revolver had been used to shoot him in the back near his right armpit. The bullet passed through his body in a downward path, cutting through his heart and right lung. He died of massive internal bleeding.

Appellant first contends the trial court erred in failing to give an instruction on murder first degree.

Appellant asserts the trial court erred in failing to instruct on first degree murder because State v. Gardner, 618 S.W.2d 40 (Mo.1980), requires that such an instruction be given where the evidence supports it. The specific question here is: Assuming sufficient evidence, it is error, when only capital murder is charged, to fail to submit a first degree murder instruction in a trial for capital murder committed after January 1, 1979? The answer is "no." Gardner does not control this case. Gardner does not stand for the proposition that first degree murder is a lesser included offense of capital murder under the New Criminal Code. The crime in Gardner was committed August 31, 1978. See State v. Mercer, 618 S.W.2d 1, 3 (Mo. banc 1981). The effect of § 556.031, RSMo 1978, is that crimes committed prior to January 1, 1979, are not governed by the Code. § 556.031.1 and .3. Section 556.220, RSMo 1969 (repealed), governed what was a lesser included offense of capital murder in Gardner. Gardner necessarily held that under § 556.220 (repealed), first degree murder was a lesser included offense of capital murder because it was an "offense inferior to that charged in the indictment." § 556.220. This was a correct declaration of the law which controlled the holding in Gardner.

Is first degree murder a lesser included offense of capital murder under § 556.046, RSMo 1978? Section 556.046 provides in pertinent part as follows:

"1. A defendant may be convicted of an offense included in an offense charged in the indictment or information. An offense is so included when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It is specifically denominated by statute as a lesser degree of the offense charged...."

This Court has recognized that an offense can be a lesser included offense of another either: (1) when its elements are necessarily included therein, or (2) when by statute it is specifically denominated as a lesser degree of the offense charged. State v. Wilkerson, 616 S.W.2d 829, 833 (Mo. banc 1981). The "elements test" requires that the lesser offense be established by proof of the same or less than all the facts required to prove the greater offense. State v. Smith & Hodges, 592 S.W.2d 165 (Mo. banc 1979). First degree murder in Missouri requires proof of commission of a felony; capital murder does not. Therefore, first degree murder is not a lesser included offense of capital murder on their elements. Nor can first degree murder be described as "specifically denominated by statute as a lesser degree" of capital murder. Cf. Wilkerson, supra. Consequently, under § 556.046, RSMo 1978, first degree murder is not a lesser included offense of capital murder.

In further support of this conclusion, it is noted that the General Assembly has, concurrent with the change brought about by § 556.046.1(2), made a change in what offenses the trier of fact in a capital murder case is to consider. Section 565.006.1, RSMo Supp.1979, no longer requires, as did § 565.006.1, RSMo 1978, that the trier of fact in a capital murder case consider "whether the defendant is guilty of capital murder, murder in the first degree, murder in the second degree, (or) manslaughter." See Historical Note to § 565.006.1, RSMo Supp.1979.

Having ruled that first degree murder is not a lesser included offense of capital murder, we must then determine the constitutional viability of the resulting instructional scheme in light of Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980). Beck requires that the trier of fact in a capital murder case be allowed to consider lesser included offenses supported by the evidence. Cf. Hopper v. Evans, --- U.S. ----, 102 S.Ct. 2049, 72 L.Ed.2d 367 (1982). The Beck requirement prevents the jury from being in an "all or nothing" situation in which it might err on the side of conviction. Although Beck is not precisely on point, due to the fact that first degree murder is not a lesser included offense of capital murder in Missouri, examination of the elements of the homicides, notably the mental states, illustrates that it is second degree murder, not first degree murder, which would sufficiently test a jury's belief of the crucial facts for a conviction of capital murder. See § 565.001, RSMo 1978; § 565.003, RSMo 1978; § 565.004, RSMo 1978; State v. Franco, 544 S.W.2d 533, 535 (Mo. banc 1976), cert. denied 431 U.S. 957, 97 S.Ct. 2682, 53 L.Ed.2d 275 (1976). Therefore, omitting first degree murder from the instructional scheme, where only capital murder is charged, does not run afoul of Beck.

Appellant next contends the trial court erred in overruling his motion to suppress his confession because the prosecution failed to sustain its burden of proving by a preponderance of the evidence that the confession was made freely and voluntarily and that it was not obtained through physical abuse of appellant by police officers.

Appellant presented evidence at a pretrial hearing on a motion to suppress two recorded statements he gave to police. One statement was taken June 20, 1980, and the other was taken June 22, 1980.

At the hearing on the motion to suppress, photographs of appellant, taken on the morning of June 23, 1980, by an investigator for the Public Defender Bureau, were introduced to show the extent of his injuries. Appellant's sister testified that she saw appellant on the evening of June 22, 1980, and that he showed her injuries on his back and face and told her that he confessed on June 20 because the police beat him. Medical records from the St. Louis City Jail showed that on June 23, 1980, defendant complained of "bruises and three abrasions on the back," a scratch on his neck, and "generalized aching."

Appellant testified at the hearing that on June 20 he was beaten by numerous officers in Interview Room One; that they never informed him of his Miranda rights until the confession was taped; that within a few minutes of his arrival at Room One they handcuffed him to a chair, kicked him, slapped him, pulled his hair, burned his arms with cigarettes, yelled at him, and knocked him out of the chair; that the only reason he confessed was because of the beating; that he "made up" some things in the confession that he thought they would want to hear; that Detective Fletcher knew that the beatings were going on and that he advised appellant to confess. Appellant also testified that he was beaten by police on June 20 after he gave the confession, but that he was actually beaten only on that day. Appellant stated that on June 21 police threatened him; that on June 22 police took another taped statement from appellant, forcing it from him with threats of more beating. On cross-examination, appellant testified that upon his arrival at police headquarters on June 20, news and media personnel filled the corridor immediately outside Room One where he was questioned.

Officers Fletcher and Crews testified for the State. Fletcher, who brought appellant in, testified that upon picking up appellant he informed him of his rights but did not interrogate or question him; that he took him to Interview Room One and left him there with Officers McCoy and Crews; that in the corridor outside Room One there were many newsmen; that he did stick his head in Room One a few times to see how things were progressing; that he only talked to appellant to ask him how things were going on those occasions; and that he knew nothing of the alleged beating. ...

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